The Gay Marriage Decision:
Ethics, Morality and Law in Conflict(2/12/2004)

As everyone who hasn't been living in a cave knows by now, the Massachusetts
Supreme Judicial Court ruled in the case of Hillary GOODRIDGE &
others] vs. DEPARTMENT OF PUBLIC HEALTH & another thatthe
state's Constitution prohibited the limitation of marriage to heterosexual
couples. This has, predictably, set off a "culture wars" battle that is
likely to rage through this year's elections and beyond. The Massachusetts
Court has been vilified and praised to the skies.

What's really going on here?

This is one of the difficult situations in which ethics
(systems of determining right from wrong), morality (formal sets of values
and principles declaring what is right and wrong) and law ( legislated
mandates declaring what a society will and will not permit) are all pulling
in different directions, and the courts have to sort things out.

The initial challenge is an ethical one. Gay couples want
the same rights as heterosexual couples, and by classic reciprocity principles,
this is something all citizens can understand:

We would want the same thing, and thus the gay couples have
the Golden Rule on their side. Two other modes of ethical analysis are
not, at least not unequivocally. The moral systems of many Americans declare
homosexual relations to be an absolute wrong, and thus conduct that should
not and cannot be approved by legislation. So there is an absolutist analysis
that opposes gay marriage, and a utilitarian analysis that says it is
wrong as well. That analysis concludes that the institution of marriage,
the stability of the family, and the welfare of society generally will
suffer if marriage is expanded to include same sex couples; in classic
utilitarian terms, the unequal treatment of gays is necessary to ensure
a larger societal good.

The Court opinion disposes of the latter argument decisively
by pointing out that it is pure speculation, and hardly different in persuasiveness
than earlier arguments predicting societal disaster if inter-racial marriages
were permitted. The real tension in the decision comes from its rejection
of the legislature's embrace of a dominant public morality, quoting the
recent U.S. Supreme Court in Lawrence v. Texas (striking down sodomy laws)
that its "obligation is to define the liberty of all, not to mandate our
own moral code." This language has provoked thoughtful attacks accusing
the both courts of denying the role of morality in legislation. For clearly,
a society's laws must reinforce and express public morality; that's what
laws do. As attorney Alan Charles Raulpointed out in a Washington
Post op-ed piece:

"In a republican form of government, which the Constitution
guarantees for the United States, elected officials are meant to set social
policy for the country. They do so by embodying their view of America's
moral choices in law. (This is a particularly crucial manner for propagating
morality in our republic because the Constitution rightly forbids the
establishment of religion, the other major social vehicle for advancing
morality across society.) In reality, legislatures discharge their moral
mandates all the time, and not just in controversial areas such as abortion,
gay rights, pornography, and the like."

This is true. But Raul and his fellow critics are wrong
to read the courts as denying this. What the courts are saying is that
morality must sometimes yield to the over-arching ethical principles that
form the foundation of American democracy. Those principles include the
right of all citizens to benefit equally from the laws, to be treated
the same as other citizens, and to share equally in the benefits of living
in America. Undeniably, marriage is one of those benefits; the Massachusetts
Court makes that argument persuasively. Homosexuality is no longer illegal,
so gay couples are full citizens with all the rights of full citizens.
The court is saying that Americans (specifically citizens of Massachusetts)
have agreed to one set of principles and values, and while they are free
to adopt whatever moral system they choose, it cannot be expressed in
law and public policy if it violates those core principles. This is consistent
with judicial treatment of other core rights. We may find books or movies
or song lyrics immoral, but the principles of free speech prevent us from
banning them. We may find a gathering of American Nazis immoral, but they
have a constitutional right to assemble.

The absolute condemnation of homosexuality has old roots:
it arose from the classic "if everybody does it" standard, at a time in
antiquity when the survival of a tribe, a race, or a community depended
on procreation between men and women, and plenty of it. If "everybody"
was homosexual, society was doomed, so it made sense to evolve strict
taboos against the conduct. But while the taboo is still strong, the primary
reason for it has disappeared. There is no threat of diminishing population;
quite the opposite. And as the elimination of legal sanctions and the
Gay Rights movement have made gays more visible in society, Americans
now find that they have gay co-workers, friends, classmates and neighbors,
and that they are, simply, people. In the absence of any concrete documentation
of factors justifying the withholding of equal treatment under the law
for gay citizens, the court in Goodrich has clarified a hierarchy
of values, starting with the Massachusetts Constitution.

It was the right approach.

A constitutional amendment is the correct remedy for those
who want to pursue it. Americans can then debate whether the moral absolute
against homosexuality should trump the broad and universal rights articulated
in the state and federal constitutions.